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Court of AppealAllowedCivil Application 126 of 2021· [2022] KECA 483 (KLR)

Nyamira Luxury v Gekoyo

Court of Appeal
25 March 2022
430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a six-day delay in filing an appeal, showing courts will extend time when you act promptly and no one is prejudiced.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal at Kisumu (Tuiyott, JA) on an unopposed application dated 23rd August 2021, expressed to be brought under Rules 4, 5(2)(b) and 29 of the Court of Appeal Rules, seeking leave to file an intended appeal out of time against the judgment of Maina, J in Nyamira Civil Appeal No. E 013 of 2021. The applicant explained that although the judgment was delivered in early July 2021, it only obtained a copy on 18th August 2021, six or so days after the statutory deadline for filing a notice of appeal, and filed the motion five days later. The court held that the applicant acted promptly and that the delay was not inordinate. Further, because the respondent did not respond to the application, there was no evidence of any prejudice that would be occasioned if it were granted. The court applied the established factors from Fakir Mohammed vs Joseph Mugambi & 2 others [2005] eKLR, namely length of delay, reason for delay, prejudice and possibly the chances of success of the intended appeal. The motion was allowed: the applicant was granted fourteen days to file and serve a notice of appeal and sixty days thereafter to file and serve a record of appeal, with costs of the application in the appeal. The ruling does not disturb the decision below; it merely opens the door to an intended appeal.

Key legal issues

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01

Whether the delay of about six days past the notice-of-appeal deadline was inordinate

Holding

The delay was not inordinate; the applicant acted promptly once it obtained a copy of the judgment on 18th August 2021.

Reasoning

The judgment was delivered in early July 2021 but the applicant only obtained a copy on 18th August 2021, six or so days after the statutory deadline for filing the notice of appeal. The applicant filed the motion five days later, demonstrating promptness. The court excused the delay as not inordinate, applying the established extension-of-time factors.

p. 1
02

Whether absence of opposition and of demonstrated prejudice supports extension of time

Holding

As the respondent did not respond to the application, there was no evidence of prejudice that would be occasioned if the application were granted.

Reasoning

The motion was unopposed. The court reasoned that because the respondent filed no response, no evidence of prejudice was before the court. Absence of demonstrated prejudice, together with the short delay and prompt action, justified exercising the discretion to extend time in the applicant's favour.

p. 1

Legal principles established

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  • Length of delay, reason for delay, prejudice to the respondent and possibly the chances of success of the intended appeal are the factors a single judge considers in an extension-of-time application.

Court orders

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  1. 1.The motion of 23rd August, 2021 is allowed
  2. 2.Applicant granted fourteen (14) days to file and serve a notice of appeal
  3. 3.Applicant to thereafter file and serve a record of appeal within sixty (60) days
  4. 4.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 29

Cases cited (1)

  • Fakir Mohammed vs Joseph Mugambi & 2 others
    [2005] eKLR

    Factors a single judge considers in determining whether to exercise discretion to extend time

On appeal from
High Court (Nyamira)
Nyamira Civil Appeal No. E 013 of 2021
Jurisdiction invoked
Rules 4, 5(2)(b) and 29 of the Court of Appeal Rules (single judge jurisdiction to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyamira Luxury v Gekoyo", Case Analysis (2022). Civil Application 126 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/483/eng@2022-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.